Blogging the hand that feeds you: while most employers have e-mail usage policies, less than one in 10 have policies governing personal blogs. What are your employees saying about you?

A decade ago, e-mail burst onto the scene, leaving most companies floundering to craft and implement HR policies to regulate use of the nascent medium. In the past year, another technological explosion is forcing employers to dust off their employee handbooks and re-evaluate their policies.

Blogs, or Web logs, are online journals or commentary that are multiplying at a prolific rate: As of October, there were an estimated 56.4 million blogs online, with about 75,000 new blogs appearing each day, according to Technorati.com, a leading blog search engine.

However, while 76 percent of organizations have e-mail usage and content policies, less than one in 10 have policies governing the operation of personal blogs on company time, and only one in 20 have strict anti-blog policies that ban blog use on company time, according to an American Management Association (AMA) 2006 survey of 416 employees.

"Certainly, most companies in the technology and media sectors are aware of the possibility of employee bloggers." said Thomas Magnani, Associate. Business Department, with the Howard Rice Nemerovski Canady Falk & Rabkin law firm in San Francisco. "Outside of those industries, the largest companies have also become aware of the issue. However, blogging policies are becoming more common all the time."

But smaller companies, like many apartment owners, are just waking up to the need to address employee blogging.

"Blogging is still in the evolving stage," said Joshua J. Kaufman, Partner, Venable LLR Washington, D.C. "When e-mail and the Internet first came out, employers took a while to incorporate those into their policies, figuring out whether e-mail was public or private. And assuming that blogs aren't replaced by some other technology and don't become obsolete, they will need to be addressed as well."

Why Worry?

Bloggers post approximately 1.2 million updates daily, or about 50,000 blog updates an hour, according to Technorati. That's 1.2 million opportunities each day for employees to broadcast information to the online world without their employers' knowledge.

According to Magnani, apartment employers should be worried. "They should be concerned about employees possibly sharing company secrets and posting negative comments about the company, as well as sharing personal information about apartment residents or about other employees of the company," Magnani said.

By implicitly or explicitly condoning employee blogging, apartment companies inadvertently can set themselves up for liability issues, according to Kauffman. "For example," Kauffman said, "if an internal survey shows that a competitor is cheating on their taxes--let's assume that it's not true, and therefore is defamatory--and an employee writes about it in their personal blog, then the lines of liability begin to blur. The more direct exposure the company has, the more of a problem it might be."

Magnani said that while he is unaware of any cases in which companies were held liable for statements made on an employee blog to date, if a company allows an employee to blog from the office on company time, it is possible that the company could be held vicariously liable for statements made on that employee's blog.

"The rationale would be that the company provided the equipment and facilities needed for the blog but did not exercise adequate control over the content of the blog," he said.

And while employees might not be breaking the law, they might be projecting an image that is not in line with company culture. "As for an employee's personal activities, it is up to each company to decide which types of activities pose the biggest threats to the company," Magnani said. "In general, it may be problematic for a company to attempt to limit employee activities that the company might find morally objectionable but that are not illegal or harmful to the company's competitive position. Moreover, companies should keep in mind that some activities may be protected by discrimination or other laws."

Parting Words

Heather Armstrong, a Salt Lake City blogger who writes under the pseudonym of "Dooce," was fired from her job in 2002 because of satirical accounts of her experiences at a dot-com startup on her blog, Dooce.com. Armstrong's dismissal spawned the term "dooced," which is synonymous with being fired for something written in an online journal.

"Most employees are employees at will," Kauffman said. "It might be their First Amendment right to say, 'This company sucks,' but it doesn't mean they won't get fired for it."

Nearly 2 percent of the AMA-surveyed companies had fired workers for offensive blog content--including posts on employees' personal home-based blogs--a number that is expected to rise as the blogosphere doubles every six months.

A company's rights to discipline or fire employees for blogging vary from state to state, Magnani said. "In California, employment is at-will," he said. "However, an employee who is terminated for blogging may bring a wrongful discharge action against his or her former employer if the employee believes his or her discharge was discriminatory or if the employee's blogging was connected with the employee's exercise of certain fundamental rights, such as political organizing or promoting workplace safety."

Kauffman said that even information that is not about the employer might be grounds for termination just because the company might not want to be associated with that kind of behavior. While circumstances vary, Magnani said that the Dooce.com case indicates that at least in some instances, it would be within a company's rights to fire an employee for disparaging statements, even if such statement were not outright libelous.

"A statement such as, 'My boss is incompetent,' is probably more of an opinion than a statement of fact, which means it likely would be difficult to characterize that statement as libelous," Magnani said. "Other types of statements, such as, 'My boss is embezzling millions of dollars from the company,' would be clearer examples of libel, if untrue."

Armstrong herself offers some sage advice for would-be employee bloggers: "I started this Web site in February 2001," Armstrong wrote on her blog. "A year later I was fired from my job for this Web site because I had written stories that included people in my workplace. My advice to you is BE YE NOT SO STUPID."

Crafting a Solid Policy

The first step in preventing blog-related employee issues is to establish a blog policy in the employee handbook. "If you don't want your employees blogging on company time or using company equipment, then state that in your HR materials," Kauffman said. "What employees do on their own time is not, nor should it be, the company's business. But if it is in any way work related, it must be addressed. Let people know what they can and can't do."

According to Magnani, IBM, Microsoft and Yahoo! have garnered publicity for successful blog policies. (See "IBM BLOGGING POLICY AND GUIDELINES.") Magnani said a solid blogging policy should prohibit the following activities:

* The making of defamatory statements about any person or company.

* Infringing the copyrights, trademarks or other intellectual property of the company or of any third party.

* Disclosing any trade secrets of the company.

* Doing anything that would constitute an invasion of someone's privacy (including customers and other employees).

"If the company is publicly traded and it is possible that employees in positions of perceived authority could be blogging, it would be important for the policy to address securities fraud, selective disclosure and other securities law issues," Magnani said. "In any case, it is critical that blogging policies require employees to affirmatively state that the statements made on the blog are the employee's own personal statements, not those of the company."

Blogging the Company's Message

But sometimes, the employee's statements are those of the company. Some companies are embracing blogs as an outlet to add a human touch to a faceless cause or corporation. (See "HOW TO START A SUCCESSFUL BUSINESS BLOG.")

For example, Robert Scoble became a high-profile corporate blogger for Microsoft when he started his blog, Scobleizer, in 2000. In his blog, Scoble goes so far as to criticize Microsoft's own products, simultaneously establishing his credibility while humanizing Microsoft. In his book, "Naked Conversations; How Blogs are Changing the Way Businesses Talk With Customers," released in January, Scoble shares tips on how to start a successful business blog.

Despite the benefits to Microsoft, Scoble and the company decided to part ways in June, ostensibly on good terms. Magnani outlined the inherent legal dangers corporate blogs pose to a company and suggested employers address such blogs in their HR policies, as well.

"A company would likely be responsible for any statements made in a company-condoned corporate blog," Magnani said.

He said that dangers, such as the risk of defamation or intellectual property infringement claims, are heightened when the company takes direct responsibility for the blog. In particular, he said that publicly traded companies must be mindful to adhere to securities laws, including the regulations promulgated by the Securities and Exchange Commission. "For example, because companies have a strong desire to make their corporate blogs appear informal, there is a risk that these companies will make statements on their blogs that omit material information or could be deemed material misrepresentations," Magnani said. "Statements that include nonpublic information also could run afoul of the selective disclosure rules."

Magnani warned that statements on a corporate blog about the company's future performance that are not accompanied by certain "safe harbor" language would fall outside the statutory safe harbor for future-looking statements and could expose the company to liability Also, statements that "hype" the company while the company is in a "quiet period," such as in connection with a public offering, could result in liability for gun-jumping, he said.

Insider Info on Potential Hires

While employee blogs have the potential to become legal quagmires for apartment companies, some HR departments are using blogs to their advantage when investigating potential job candidates.

"Generally speaking, information that individuals post on blogs accessible to anyone on the Internet without a password is publicly available information and, therefore, is fair game for potential employers to review," Magnani said.

Kauffman said, "Looking at blogs for potential hires has become a kind of regular part of the process. It is out in public, so there's no reason a company can't look at it."

Magnani warned that blog searching does have its limitations. "In theory, if a search were sufficiently extensive, it could be deemed to be a 'background check,' which, in some states, such as California, would require notification to, and consent from, the candidate. A company considering engaging in extensive Internet searches should seek the advice of counsel. Of course, information learned from a candidate's blog cannot be used for any illegal purpose, such as engaging in prohibited forms of discrimination."

Kauffman said, "You still can't use blog information to do illegal things, such as discriminate against a protected class, but if you look up a job candidate's blog and it says, 'I can't get enough sex, drugs and rock n' roll,' the HR department has every right to say, 'No, thank you.'"

IBM BLOGGING POLICY AND GUIDELINES

1. Know and follow IBM's Business Conduct Guidelines.

2. Blogs, wikis and other forms of online discourse are individual interactions, not corporate communications. IBMers are personally responsible for their posts. Be mindful that what you write will be public for a long time--protect your privacy.

3. Identify yourself--name and, when relevant, role at IBM--when you blog about IBM or IBM-related matters. And write in the first person. You must make it clear that you are speaking for yourself and not on behalf of IBM.

4. If you publish a blog or post to a blog and it has something to do with work you do or subjects associated with IBM, use a disclaimer such as this: "The postings on this site are my own and don't necessarily represent IBM's positions, strategies or opinions."

5. Respect copyright, fair use and financial disclosure laws.

6. Don't provide IBM's or another's confidential or other proprietary information.

7. Don't cite or reference clients, partners or suppliers without their approval.

8. Respect your audience. Don't use ethnic slurs, personal insults, obscenity, etc., and show proper consideration for others' privacy and for topics that may be considered objectionable or inflammatory--such as politics and religion.

9. Find out who else is blogging on the topic and cite them.

10. Don't pick fights, be the first to correct your own mistakes, and don't alter previous posts without indicating that you have done so.

11. Try to add value. Provide worthwhile information and perspective.

Source: www.ibm.com

HOW TO START A SUCCESSFUL BUSINESS BLDG 

When Pat Cleary began his blog in November 2004, he never anticipated that two years later, he would have mobilized an online community dedicated to the same issues that impassioned him.

"I wanted to create an online community where people could chat and to build a name for the manufacturing industry online," said Cleary, Senior Vice President of the National Association of Manufacturers. "It started out as a blog for our members but has gone far afield from that. I never anticipated that it would grow the way it did."

Cleary's Shopfloor.org has become a leading forum for promoting the manufacturing industry's top legislative issues, amassing more traffic every day. "It is a big thing for us as a lobbying group--pushing policy and making sure we get the results that we want from the people in Washington," Cleary said. "We added links to allow people to contact their members of Congress and they used those links in droves. We are motivating people to take action."

Unlike a traditional Web site, Cleary describes Shopfloor.org as "timely, interactive, edgy, fun, hip and readable. It can be written in a voice that makes people want to read it, not wonky and dense like a corporate site can be--and I can say that because I'm in charge of our corporate Web site, too."

According to Cleary, every type of company can benefit from adding a blog to its arsenal of PR tactics. "At the end of the day, you have more visibility for your company," Cleary said. "In your media plan, would you create a plan that excluded TV or print, just because you didn't like it? How can you have a communications strategy that does not include this medium?"

When it comes to creating a successful business blog, Cleary outlines several critical issues:

Readability is Key. "I used to write a newsletter when I worked in HR and communications," Cleary said, "and I didn't want to crank out a newsletter that just wasted paper and went in the trash." Cleary said blogs should, above all, be easy to read by their target audiences.

Manage Your Time. Cleary said his blogging takes up zero hours of his nine-to-five day. "I have other responsibilities," he said. "I write in the evening. This is not in my job description. But it's worth it to us in terms of the traffic and attention to our issues."

Tap Into Passion. "On a personal level, I'm a writer, and writers write," Cleary said. He recommended tapping employees in the organization who are already blogging to head up the corporate blog. "Find someone who has a passion for writing to write your blog," he said.

Turn Up the Volume. The more content, the better. "If you write once a month, you'll never build the traffic," Cleary said. "Do you have to write three times a day? No, but more is better." Cleary recommended incorporating several company authors to break up the writing responsibilities.

Keep it Short. "Write little blurbs," Cleary said. "They can be about an interesting industry article, or a legal or legislative issue."--J.G.

Jeanine Gajewski is NAA's Manager of Communications. She can be reached at [e-mail] or 703/518-6141 Ext. 141.